Alleged set-top box pirates lose Canadian Federal Court appeal

In a decision that should not surprise anyone, the distributors of set top boxes that were specifically adapted to enable purchasers to stream and download infringing copies of programs made available by Bell, Bell Expressvu, Rogers, and Videotron lost their appeal of an injunction granted this summer by Justice Tremblay-Lamer in Bell Canada v ITVBOX.NET 2016 FC 612. (summarized here).

The appellants didn’t appeal the findings of the court that there was a strong case of infringement. Rather, they challenged the court’s findings that broadcast distribution undertakings would suffer irreparable harm if the injunction was not granted. The court in Wesley dba MTLFREETV.com v Bell Canada et al 2017 FCA 55 easily rejected this attempt to re-argue the evidence stating:

The appellants do not challenge the Federal Court’s finding with respect to the first prong of the test. Their attack focuses on the finding that the respondents had established that they would suffer irreparable harm if the injunction was not granted. In their memorandum, the appellants contend that the Federal Court erred in law and made a number of overriding and palpable errors in reaching this conclusion. At the hearing, they conceded that the questions before us are all questions of mixed facts of law. They submit that the Federal Court had to misconstrue this criterion, for in their view, there was no clear and non-speculative evidence on which the Federal Court could conclude that the respondents would lose actual or prospective clients as a result of the appelants’ activities. They also argue that there was no evidence that they were unlikely to have the financial resources required to compensate the respondents’ losses should they succeed on the merits. According to the appellants, the Federal Court also erred i) by failing to appreciate that the losses, if any, would all be easily quantifiable and (ii) in its evaluation of the relevant market.

Having carefully reviewed the evidentiary record, we are satisfied that it was open to the Federal Court to conclude as it did. In our view, in light of the uncontradicted evidence including the advertisement that these pre-loaded set up boxes are a way to access free tv content and avoid cable bills, the Federal Court was entitled to draw the inferences that it did. What the appellants are seeking is that this Court re-weighs the evidence and substitutes its own assessment to that of the Federal Court. It is not our role to do so, given that the appellants have not persuaded us that the Federal Court made an overriding and palpable error in evaluating the voluminous evidence before it.

The decision in the case follows a recent criminal conviction in the UK against a distributor of set top boxes (often referred to as “Kodi boxes”) and a blocking injunction in that country to prevent streaming of sports league content to such boxes in The Football Association Premier League Ltd v British Telecommunications Plc & Ors [2017] EWHC 480 (Ch) (13 March 2017) case. The injunction was granted after Arnold J. found that the streaming of content to the boxes infringed, inter alia, the communication to the public right and that users also infringed copyright when using them.

These pre-loaded set-top boxes pose such challenges to legal content distribution that the UK Intellectual Property Office is studying whether its laws need upgrading to deal with this new form of unauthorized content distribution.